Opinion
No. 62703-1-I.
January 25, 2010.
Appeal from a judgment of the Superior Court for Skagit County, No. 08-1-00076-1, Susan K. Cook, J., entered November 21, 2008.
Affirmed by unpublished opinion per Lau, J., concurred in by Schindler, C.J., and Appelwick, J.
Mathew Gilbert was convicted by a jury of one count of first degree burglary and five counts of theft of a firearm. Gilbert argues that his counsel provided ineffective assistance by failing to argue at sentencing that the burglary and theft offenses should be considered the same criminal conduct. Because Gilbert cannot show prejudice from his counsel's allegedly deficient performance, we affirm his judgment and sentence.
Facts
A jury convicted Mathew Gilbert of one count of first degree burglary and five counts of theft of a firearm based on accomplice liability. Gilbert was acquitted of possession with intent to deliver marijuana.
At trial, witnesses testified to the following facts: On January 30, 2008, Gilbert drove Casey Wilson to Brad Dellinger's house. Dellinger's neighbor, William Mitchell, saw Wilson walk to the back of the house and leave a short time later with an armful of rifles. Mitchell confronted Casey and told Casey that he would call the police, at which point Wilson dropped the guns, got into a car, and the car drove off.
Gilbert submitted a sentencing brief stating there was
[no] information about any prior felony convictions so Defendant starts as a zero; that is zero points.
It is also the Defendant's position that he should be sentenced as a-1-(one) on each of the separate offenses — that is he should be sentenced as a one on the Burglary First Degree charge and a one on the five counts of Theft of a Firearm.
While Gilbert's sentencing counsel argued in the sentencing brief that the five counts of theft of a firearm should be counted as the same criminal conduct, he did not make that argument on the burglary and theft of a firearm offenses. At the sentencing hearing, the State agreed that the five theft of a firearm offenses constituted the same criminal conduct, but Gilbert's sentencing counsel made no argument that the burglary and theft of a firearm offenses were the same criminal conduct or address Gilbert's offender score. The judge sentenced Gilbert to 24 months for the burglary and 20 months on each of the theft counts, to be served concurrently, for total confinement of 24 months. The judge made no same criminal conduct findings but did sentence Gilbert based on an offender score of 1 for each of the offenses.
Gilbert was represented by different counsel at trial.
Analysis
Gilbert argues that he received ineffective assistance because his sentencing counsel did not argue that his burglary and theft offenses constituted the same criminal conduct. The State responds that Gilbert cannot show prejudice because same criminal conduct is a discretionary ruling.
RCW 9.94A.589(1)(a) treats all "current and prior convictions as if they were prior convictions for the purpose of the offender score." That section, however, recognizes an exception "if the court enters a finding that some or all of the current offenses encompass the same criminal conduct[,] then those current offenses shall be counted as one crime." "Same criminal conduct," as used in that subsection, means two or more crimes that require the same criminal intent, involve the same victim, and are committed at the same time and place. RCW 9.94A.589(1)(a); State v. Haddock, 141 Wn.2d 103, 109-10, 3 P.3d 733 (2000).
But "the [burglary] antimerger statute gives the sentencing judge discretion to punish for burglary, even where it and an additional crime encompass the same criminal conduct." State v. Lessley, 118 Wn. 2d 773, 781, 827 P.2d 996 (1992). That statute provides, "Every person who, in the commission of a burglary shall commit any other crime, may be punished therefor as well as for the burglary, and may be prosecuted for each crime separately." RCW 9A.52.050
Although a defendant cannot generally waive a challenge to a miscalculated offender score, there can be a waiver where "the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion." In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002). Application of the same criminal conduct statute involves both factual determinations and the exercise of discretion. State v. Nitsch, 100 Wn. App. 512, 523, 997 P.2d 1000 (2000).
In Nitsch, we held that the defendant's failure to identify a factual dispute at sentencing and the failure to request that the court exercise its discretion to determine whether the crimes encompassed the same criminal conduct, waived the right to challenge the offender score for the first time on appeal. Nitsch, 100 Wn. App. at 520.
Here, had Gilbert directly challenged his offender score, we would be obliged to find waiver. The facts here are analogous to Nitsch. Gilbert failed to identify a factual dispute concerning his offender score or ask the trial court to exercise its discretion and to find that the offenses constituted the same criminal conduct. Indeed, Gilbert affirmatively asserted that the two offenses were not the same criminal conduct by arguing that "he should be sentenced as a one on the Burglary First Degree charge and a one on the five counts of Theft of a Firearm." Therefore, Gilbert failed to preserve a direct challenge to his offender score. See Goodwin, 146 Wn.2d 861 (noting that failure to identify a factual dispute for the court's resolution and to request an exercise of the court's discretion waives one's challenge to his offender score); State v. Wilson, 117 Wn. App. 1, 75 P.3d 573 (2003) (holding that defendant waived challenge to calculation of offender score by failing to raise issue below).
Accordingly, Gilbert argues that his sentencing counsel's failure to identify such a factual dispute and to preserve a challenge to his offender score constitute ineffective assistance of counsel. To demonstrate ineffective assistance, Gilbert must satisfy both prongs of a two-prong test. See State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). First, Gilbert must establish that his counsel's representation was deficient. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). To show deficient performance, a defendant must show that his or her counsel's conduct falls below an objective standard of reasonableness. State v. Stenson, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). Matters that go to trial strategy or tactics do not show deficient performance, and Gilbert bears the burden of establishing there were no legitimate strategic or tactical reasons behind his counsel's choices. State v. Rainey, 107 Wn. App. 129, 135-36, 28 P.3d 10 (2001). Second, Gilbert must show that his counsel's deficient performance resulted in prejudice such that "there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different." Hendrickson, 129 Wn.2d at 78. Courts employ a strong presumption that counsel's representation was effective. McFarland, 127 Wn.2d at 335. Furthermore, we need not address both prongs if the defendant makes an insufficient showing on one prong. State v. Fredrick, 45 Wn. App. 916, 923, 729 P.2d 56 (1986).
Here, Gilbert cannot establish prejudice because he has made no showing of a reasonable likelihood that the sentence would have been different had his sentencing counsel asked the trial court to exercise its discretion to find the offenses involved the same criminal conduct. Our review of the record shows that the trial court would not have imposed a lighter sentence. First, the trial court imposed sentences squarely in the middle of the standard ranges. And in denying an appeal bond, the court made it clear how serious it considered Gilbert's crimes.
While the standard ranges for the theft of a firearm and burglary offenses were 15 to 20 months and 21 to 27 months respectively, the judge imposed 20 months on the theft of a firearm and 24 months on the burglary. RCW 9.94A.510.
Mr. Gilbert, these are serious offenses. Burglary is a Class A felony, and Theft of a Firearm is always a concern when those firearms that are being stolen wind up in the community and are used for things that aren't the right kind of things. So you'll need to go into custody right away.
Reportof Proceedings (Nov. 21, 2008) at 7. And Gilbert points to no contrary evidence demonstrating a likelihood that the court would have exercised its discretion in his favor. On this record, Gilbert cannot establish that but for his counsel's conduct, the result would have been different. Because Gilbert has failed to establish prejudice, we need not address the deficient performance prong of ineffective assistance analysis.
Finally, Gilbert relies on State v. McGill, 112 Wn. App. 95, 100-02, 47 P.3d 173 (2002) for the proposition that mere failure to cite authority for an exercise of discretion constitutes ineffective assistance. In McGill, we found ineffective assistance because defense counsel failed to inform the sentencing judge of the court's discretionary power to impose an exceptional sentence downward where the judge indicated a willingness to do so. McGill is distinguishable. First, McGill involved discretion to impose an exceptional sentence downward, not the burglary anti-merger statute. McGill, 112 Wn. App. at 98. Second, in McGill the sentencing court expressed a desire to depart from the standard range but incorrectly believed it lacked the authority to do so. McGill, 112 Wn. App. at 100. Thus, McGill could establish prejudice and a reasonable probability of a different result given the court's expressed desire to sentence below the standard range. Here, Gilbert can make no such showing that the result would likely have been different but for his counsel's allegedly deficient performance. Nor does anything in the record here indicate the sentencing court was unaware of its decision-making authority or discretion under the same criminal conduct doctrine.
Gilbert also cites State v. Grayson, 154 Wn.2d 333, 341-42, 111 P.3d 1183 (2005) in support of this argument. Grayson, however, involved a trial court's abuse of discretion for refusing to consider a drug offender sentencing alternative, not an ineffective assistance of counsel claim.
Accordingly, we affirm Gilbert's judgment and sentence.